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2003 DIGILAW 47 (GAU)

Jamini Kanta Sarma v. Purnima Das Paul

2003-01-31

AMITAVA ROY, P.P.NAOLEKAR

body2003
JUDGMENT Amitava Roy, J. 1. The Appellant, who was the Defendant in TS No. 2/2001, is before this Court being aggrieved by the judgment dated 8.3.2002 and the decree dated 15.3.2002 passed by the learned Civil Judge(Senior Division) Morigaon, decreeing the suit of the Respondent-Plaintiff for specific performance of contract. 2. We have heard Mr. AC Sarma, learned Counsel for the Appellant and Mr. CKS Baruah, learned Senior Counsel assisted by Mr. AS Choudhury, for the Respondent. 3. The facts in brief leading to the filing of the appeal are that the Respondent-plaintiff filed the aforementioned suit contending that the Appellant-Defendant is the owner of the suit property who being in need of money proposed to sell the same to her. A registered agreement for sale being Deed No. 1042 dated 30.6.99 was executed between parties. The price of the property was fixed at Rs. 2,20,000/- out of which Rs. 1,20,000/- was paid by the Respondent-Plaintiff to the Appellant-Defendant on the date of execution of the agreement. It was agreed between the parties that the remaining amount would be paid by 30.9.99 whereupon the deed of sale would be executed by the Appellant-Defendant after obtaining necessary permission etc. Due to unavoidable reasons, the time for execution of the sale deed was thereafter extended by the agreements dated 30.9.99 and 19.11.99. The parties, however, on 26.10.99 went to the Registration Office, Morigaon, where the sale deed was written. The Respondent-Plaintiff thereafter paid the balance consideration of price of Rs. 1,00,000/- to the Appellant-Defendant who thereafter signed the sale deed in the presence of the witnesses. But subsequently, at the instance of some interested persons, the Appellant-Defendant changed his mind and left the place without presenting the sale deed for registration before the registering authority. The son of the Appellant-Defendant Sri Ranjit Sarma also filed a suit being T.S. No. 29/99 in the Court of the learned Civil Judge (Junior Division) Morigaon, against the Respondent-Plaintiff and Ors. for a declaration that the signature of the Appellant-Defendant and his sons as witnesses were taken on the sale deed forcefully and for a decree for permanent injunction restraining the registering authority from registering the said sale deed. Initially, temporary injunction was granted as prayed for in the connected Misc. Case. Eventually, after hearing the written objection filed by the Respondent-Plaintiff, the same was vacated. Initially, temporary injunction was granted as prayed for in the connected Misc. Case. Eventually, after hearing the written objection filed by the Respondent-Plaintiff, the same was vacated. The Respondent-Plaintiff pleaded that she had paid the entire consideration price of Rs. 2,20,000/- and has always been ready and willing to perform her part of the contract but the Appellant-Defendant without any justification failed to perform his part and, therefore, she was entitled to a decree for specific performance in terms of the prayer made in the plaint. 4. The Appellant-Defendant in his written statement took a stand that there was no valid contract for sale of the suit property in favour of the Respondent-Plaintiff. While admitting that he is the owner of the suit property and that he was in urgent need of money to sell the same and further that the Respondent-Plaintiff was agreeable to purchase it at the settle price of Rs. 2,20,000/-, he denied the execution of the agreement for sale on 30.6.99 and the registration thereof. He further denied to have accepted an amount of Rs. 1,20,000/- towards the consideration price of the property proposed to be sold. He also denied the execution of the agreements dated 30.9.99 and 19.11.99 extending the period for completion of the transaction. He also denied that on 26.10.99, the parties had gone to the registration office and that he had asked the deed writer to write a sale deed. The payment of the balance consideration price of Rs. 1,00,000/- as claimed by the Respondent-Plaintiff was also denied by him. He further denied that he thereafter put his signature on the sale deed in presence of the witnesses. It was, however, admitted in the written statement that his son Sri Ranjit Sarma had filed TS No. 29/99 against the Respondent-Plaintiff for restraining her and Ors. from getting the sale deed registered with a view to cheat him and grab his property. He categorically denied that the Respondent-Plaintiff had paid the entire amount of consideration price of Rs. 2,20,000/-. According to the Appellant-Defendant, the Respondent-Plaintiff and her husband induced him to sell the suit property. He was not in a sound state of health and mind, on 23.12.98, when the agreement was executed between the parties for the sale of the property for Rs. 2,20,000/-. 2,20,000/-. According to the Appellant-Defendant, the Respondent-Plaintiff and her husband induced him to sell the suit property. He was not in a sound state of health and mind, on 23.12.98, when the agreement was executed between the parties for the sale of the property for Rs. 2,20,000/-. Thereafter on 26.10.99, the Respondent-Plaintiff accompanied by some unknown persons came to the house and compel led him to put his signature on the sale deed. They also forcibly took the signatures of his sons and daughters on the said deed as witnesses. It was, however, admitted that the suit filed by his son was ultimately dismissed. 5. On the pleadings of the parties, the learned Trial Court framed several issues. The parties thereafter examined witnesses in support of their respective cases and also proved documents. 6. The learned trial Court after considering the pleadings of the parties and the evidence on record by the impugned judgment decreed the suit and directed the Appellant-Defendant to register the sale deed executed on 26.10.99 and deliver possession of the suit property to the Respondent-Plaintiff. 7. The learned Court below while dealing with the issue as to whether there was any written agreement for sale executed on 30.6.99, took note of the evidence of the Respondent-Plaintiff P.W.-1, who had duly proved and exhibit the agreement as Ext-1 and the agreement dated 30.9.99 for extension of time, Ext-2. She also proved the sale deed dated 26.10.99, Ext. 6. The learned Court below also considered the evidence of P.W.-2, the deed writer. It was further noticed by the learned trial Court that the Appellant- Defendant in his deposition admitted the execution of the deed of agreement for sale, Ext-1, and also the receipt of Rs. 1,20,000/- as advance towards consideration price of Rs. 2,20,000/-. The admission on the part of the Appellant-Defendant about the execution of the sale deed, Ext-6, was also considered by the learned trial Court. On the basis of the above evidence, the learned trial Court, therefore, concluded that the agreement for sale was executed between the parties on 30.6.99 fixing the consideration price of the suit property at Rs. 2,20,000/- out of which an amount of Rs. 1,20,000/- was paid by the Respondent-Plaintiff to the Appellant-Defendant on the date of execution of the agreement. On the basis of the above evidence, the learned trial Court, therefore, concluded that the agreement for sale was executed between the parties on 30.6.99 fixing the consideration price of the suit property at Rs. 2,20,000/- out of which an amount of Rs. 1,20,000/- was paid by the Respondent-Plaintiff to the Appellant-Defendant on the date of execution of the agreement. In coming to the said finding, the learned trial Court dismissed the contention raised on behalf of the Appellant-Defendant that his signature as well as those of the witnesses on the sale deed were taken by force. It also discarded Anr. deed of agreement, Ext-Kha, produced by the Appellant-Defendant to show that the balance amount was not paid. According to the learned trial Court, from the evidence of the Respondent-Plaintiff as well as the contents of the sale deed, Ext-6, (Which mentioned that the balance amount of Rs. 1,00,000/- had been paid to the Appellant-Defendant) it could not be accepted that any force was applied to obtain signatures of the Appellant-Defendant and his witnesses on the sale deed. Ext-Kha was left out of consideration on the ground that the Appellant-Defendant had not made any reference of the same in his written statement. 8. Having held so, the learned trial Court while deciding the Issue No. 5 relating to the execution of the sale deed held that the balance amount of Rs. 1,00,000/- had been received by the Appellant-Defendant on 26.10.99, the date on which the sale deed, Ext-6, was executed. While dealing with the contention raised on behalf of the Appellant- Defendant that though the sale deed was executed on 26.10.99 with the recital that the balance amount had been paid, it was actually not so as would be evident from Ext-Kha, the learned trial Court was of the view that it was apparent from the evidence of the Respondent-Plaintiff as well as the sale deed, Ext-6, that the Appellant-Defendant had accepted the balance consideration of Rs. 1,00,000/-. According to the learned trial Court, there was some doubt with regard to execution of Ext-Kha by the Respondent-Plaintiff as her signatures appearing thereon did not tally with her admitted signatures on Ext-1. The suit was thus decreed as mentioned hereinabove. 9. Mr. 1,00,000/-. According to the learned trial Court, there was some doubt with regard to execution of Ext-Kha by the Respondent-Plaintiff as her signatures appearing thereon did not tally with her admitted signatures on Ext-1. The suit was thus decreed as mentioned hereinabove. 9. Mr. A.C. Sarma, learned Counsel for the Appellant, has emphatically urged that the finding of the learned trial Court that the sale deed, Ext-6,was executed by the Appellant- Defendant after receiving the balance consideration price of Rs. 1,00,000/- is against the weight of the evidence on record and being perverse the impugned judgment and decree are liable to be interfered with in this appeal. He argued that the Respondent-Plaintiff having admitted the execution of, Ext-Kha, the agreement dated 19.11.99, clearly mentioning that the balance consideration price of Rs. 1,00,000/- had not been paid, the learned trial Court was in error in discarding the said document on the specious ground that the signatures of the Respondent-plaintiff thereon did not tally with her signatures on the agreement dated 30.6.99, Ext-1. The learned Counsel maintained that as Ext-1 proved in the suit was a certified copy of the document it could not have been possible on the part of the learned trial Court to compare the signatures of the Respondent-Plaintiff on the two documents, namely Ext-1 and Ext-Kha and on that ground alone the finding that the Ext-Kha a was forged document is liable to be set aside. As the date of execution of Ext. Kha is admittedly subsequent to the date of execution of Ext-6, it is apparent on the face of the records that the balance consideration price of Rs. 1,00,000/- had not been paid by the Respondent-Plaintiff to the Appellant-Defendant and, therefore, the decree for specific performance of the contract as granted by the learned trial Court is vitiated by manifest error of law rendering it unsustainable in law and on facts, he argued. 10. Countering the above arguments, Mr. CKS Baruah, learned senior Counsel appearing for the Respondent, has argued that the evidence of the Respondent-Plaintiff and her witnesses together with the contents of the sale deed, Ext-6, would unequivocally proclaim that the entire consideration price was paid on or before the execution of the sale deed and, therefore, in the facts and circumstances of the case, the learned trial Court rightly decreed the suit. He contended that the conduct of the Appellant-Defendant was not above board, inasmuch as, he had gone to the extent of even denying the execution of the agreement dated 30.6.99 in his written statement and having regard to the said fact, the document, Ext-Kha, produced by him has to be taken with a pinch of salt. The learned senior Counsel maintained that there was no reference of the said document in the written statement and, therefore, it was not open for the Appellant-Defendant to produce and rely on the same in course of his evidence in the suit. He urged that the attending facts and circumstances would clearly demonstrate that the Appellant-Defendant had received the consideration price in full and on advise of interested persons he avoided registration of the sale deed without any just and reasonable cause. According to the learned Senior Counsel, therefore, the impugned judgment and decree are perfectly legal and valid and no interference by this Court is called for. 11. To appreciate the rival contentions of the parties, a brief narration of the evidence on record would be necessary. The Respondent-Plaintiff who examined herself as P.W.-1 deposed that there was a negotiation for purchase of the suit property and the price thereof was fixed at Rs. 2,20,000/-. An agreement in writing was made and on the date of writing of the agreement a sum of Rs. 1,20,000/- was paid. It was decided that within a period of 2 1/2 months thereof permission would be taken and a sale deed would be made. As permission could not be taken within the time fixed, extension of time was made and after obtaining the permission, the sale deed was written. The clerk wrote the sale deed in the registration office and the Appellant-Defendant along with his family members were present then. The Appellant- Defendant and his sons also put their signatures thereon. On the date of writing the deed, she paid the balance consideration price of Rs. 1,00,000/- at the residence of the Appellant-Defendant. She further stated that after writing of the deed, some altercations took place and the deed was not registered. Thereafter the Appellant-Defendant did not register the sale deed and his son filed a suit against her. The Respondent-Plaintiff proved Ext-1, the first agreement and the Ext-2, by which the time was extended. She also proved Ext-6, the sale deed dated 26.10.99. Thereafter the Appellant-Defendant did not register the sale deed and his son filed a suit against her. The Respondent-Plaintiff proved Ext-1, the first agreement and the Ext-2, by which the time was extended. She also proved Ext-6, the sale deed dated 26.10.99. In cross-examination she confirmed that the first agreement was dated 30.6.99. 12. P.W.-2, Sri Surendra Kumar Baruah, stated that he wrote the sale deed which was executed by the Appellant-Defendant in favour of the Respondent-Plaintiff. He proved the Ext 6(1) to 6(17) as his signatures thereon. In cross-examination, he stated that he wrote the deed in the office of the Sub-Registrar. 13. The Appellant-Defendant examined himself as D.W.-1. He deposed that a settlement for selling the suit property to the Respondent-Plaintiff on a consideration price of Rs. 2,20,000/- was arrived at. He admitted that the Respondent-Plaintiff had paid a sum of Rs. 1,20,000/-. He testified that the original agreement was on 1.7.99 and on 19.11.99, Anr. agreement was made to the effect that the Respondent-Plaintiff would pay the remaining money to him and then he would register the sale deed. He proved the photocopy of the said agreement dated 19.11.99 as Ext-Kha and the original agreement dated 19.11.99 as Ext-Kha(1). He stated that about 20 to 25 persons came to his house and started shouting and holding his hands took the signature in one of the papers. In cross-examination, he stated that on Ext-6 his sons put signatures. He, however, conceded that he did not institute any suit in any Court for cancelling Ext-6. He further stated in cross-examination that he did not receive Rs. 1,20,000/- but his son did. He denied the suggestion that he executed Ext-6 after receiving Rs. 1,00,000/- as the balance amount of consideration price from the Respondent-Plaintiff and that thereafter he put his signature thereon. 14. The D.W.-1, Sri Ranjit Sarma, who is the son of the Appellant-Defendant admitted in his evidence that there was an agreement for sale of the suit property for a total consideration price of Rs. 2,20,000/- and that an agreement was made on 30.6.99. He further stated that on 26.10.99, the Respondent-Plaintiff along with some persons came to their house and after threatening the Appellant-Defendant took his signature forcibly. He, therefore, filed TS No. 29/99 and Misc. 2,20,000/- and that an agreement was made on 30.6.99. He further stated that on 26.10.99, the Respondent-Plaintiff along with some persons came to their house and after threatening the Appellant-Defendant took his signature forcibly. He, therefore, filed TS No. 29/99 and Misc. (J) Case No. 32/99 in the Court of the Civil Judge (Junior Division) Morigaon to prevent the registration of the sale deed. The witness further stated that on 19.11.99 Anr. agreement was made, i.e., Ext-Kha(1), where the Ext-Kha(5) and Ext-Kha(6) are the signatures of the Respondent-Plaintiff. The witness further deposed that the Respondent-Plaintiff did not pay the full amount of consideration price. He confirmed that he received the money paid by way of advance. 15. What, therefore, transpires from the evidence on record is that a written agreement for sale of the suit property was executed by the parties on 30.6.99 setting the deadline for completion of transaction by 30.9.99. The price was fixed at Rs. 2,20,000/- and the Respondent-Plaintiff had paid Rs. 1,20,000/- by way of advance on 30.6.99. The parties agreed that the Respondent-Plaintiff would pay the balance amount of Rs. 1,00,000/- on 30.9.99 and the Appellant-Defendant would, after obtaining necessary permission, complete the other formalities for executing the sale deed. However, as it was not possible, the parties extended the time for completion of the transaction up to 25.10.99 by an agreement dated 30.9.99. Accordingly, on 26.10.99, the parties presented themselves in the office of the Sub-Registrar, Morigaon, where the sale deed was drawn up and the Appellant-Defendant and his witnesses put their signatures thereon. However, some differences arose between the parties for which the sale deed was not registered. Subsequently, on 19.11.99 Anr. written agreement was executed whereby time was extended up to 20.12.99 to enable the Respondent-Plaintiff to pay the balance amount of Rs. 1,00,000/- whereupon the Appellant-Defendant was to complete the formalities regarding the execution of the sale deed and deliver possession of the conveyed property to the Respondent-Plaintiff. As the same did not materialise, a suit, was filed. There appears to be some controversy with regard to the execution of the sale deed. Whereas the version of the Respondent- Plaintiff is that the sale deed was executed by the Appellant-Defendant after receiving the balance consideration price of Rs. As the same did not materialise, a suit, was filed. There appears to be some controversy with regard to the execution of the sale deed. Whereas the version of the Respondent- Plaintiff is that the sale deed was executed by the Appellant-Defendant after receiving the balance consideration price of Rs. 1,00,000/-, it is the case of the Appellant-Defendant that his signature on the said document was taken by force and the balance consideration price of Rs. 1,00,000/- was not paid by the Respondent-Plaintiff. He had mainly relied on Ext-Kha, agreement dated 19.11.99 in support of his said plea. The parties do not seem to be at issue with regard to the sale price and the execution of the original agreement for sale, Ext-1. The question which falls for consideration is whether the Respondent-Plaintiff had paid the balance consideration price of Rs. 1,00,000/- to the Appellant-Defendant on or before 26.10.99, the date on which the sale deed was executed by the Appellant-Defendant. A perusal of the Ext-6 would reveal that it contains a recital that the Respondent-Plaintiff had paid the balance consideration price of Rs. 1,00,000/- on the date of the execution of the sale deed, i.e., 26.10.99. On the other hand, Ext-Kha dated 19.11.99 clearly mentions that the Respondent-Plaintiff would pay the balance consideration price of Rs. 1,00,000/- on 20.12.99, suggesting that the same was not paid on 26.10.99. Though there is no reference of the said document, Ext-Kha, in the written statement, it is noticeable that the agreement dated 19.11.99 has been admitted and acknowledged by the Respondent-Plaintiff in the plaint. As the date of execution of Ext-Kha is later than that of the date of execution of Ext-6 and further as the Respondent-Plaintiff has categorically admitted about the execution of the agreement dated 19.11.99, Ext-Kha, we are inclined, in the facts and circumstances of the case, to hold that the plea of the Appellant-Defendant that the Respondent-Plaintiff had not paid the balance consideration price of Rs. 1,00,000/- on or before 26.10.99 merits acceptance. It is not the case of the parties that the Respondent-Plaintiff had paid the balance consideration price after 26.10.99. 1,00,000/- on or before 26.10.99 merits acceptance. It is not the case of the parties that the Respondent-Plaintiff had paid the balance consideration price after 26.10.99. It is very unlikely, that if the Respondent-Plaintiff in fact had paid the balance amount of the sale price on 26.10.99 as the sale deed, Ext-6, indicates that she would be a party to a subsequent agreement, Ext-Kha, where under she would take liability of paying the amount once again. The learned Court below had rejected the Ext-Kha on the ground that the written statement contained no reference of the said document. While doing so, however, the learned trial Court has over looked the fact that the Respondent-Plaintiff had admitted the existence of the said document in her plaint. What seems to have been happened is that the sale deed Ext-6 was drawn up on the assurance of the Respondent-Plaintiff that she would pay the balance consideration price of Rs. 1,00,000/- and a recital to the effect that the same has been paid was incorporated therein. The Appellant-Defendant and his witnesses signed the document but as the Respondent-Plaintiff later on refused to pay the balance consideration price of Rs. 1,00,000/-, the registration could not be done. Subsequently, there was again a reconciliation between the parties and time was extended upto 20.12.99 for the Respondent-Plaintiff to pay the balance consideration price of Rs. 1,00,000/- so that the remaining formalities relating to the execution and registration of the sale deed be completed and the possession of the suit property be delivered to the Respondent-Plaintiff As things did not take shape as agreed upon by the parties vide Ext-Kha, the suit was filed. Considering the totality of the evidence on record, we cannot subscribe to the view that the Respondent-Plaintiff had paid the balance consideration price of Rs. 1,00,000/- on 26.10.99, i.e., the date of execution of the sale deed. We consider it to be totally against the normal human conduct for the Respondent-Plaintiff to have executed the agreement, Ext-Kha on 19.11.99 taking upon her self the liability to pay the balance consideration price of Rs. 1,00,000/- if, she had already paid the said amount on or before 26.10.99. We, therefore, hold that the Respondent-Plaintiff is in default of payment of the balance amount of Rs. 1,00,000/- towards the consideration price of the suit property. 16. 1,00,000/- if, she had already paid the said amount on or before 26.10.99. We, therefore, hold that the Respondent-Plaintiff is in default of payment of the balance amount of Rs. 1,00,000/- towards the consideration price of the suit property. 16. We are constrained to observe that in the facts and circumstances of the case, the stand taken by the parties in their pleadings, vis-a-vis, the evidence their conduct has not been very consistent and straight forward. However, the fact remains that an argument had been entered into between the parties for sale of the suit property at an agreed price of Rs. 2,20,000/-. The Respondent-Plaintiff admittedly has paid Rs. 1,20,000/-. In course of the arguments in the appeal, no indication was given that the parties were not willing to complete the transaction even as on date. Nothing has been pointed out to us to the effect that if specific performance of the contract is ordered on the condition of payment of the balance amount of Rs. 1,00,000/- by the Respondent-Plaintiff she, would enjoy an unfair advantage over the Appellant-Defendant or it would cause any hardship to the latter. In other words, there is nothing on record to suggest that if specific performance of the contract between the parties is enforced, as proposed, it would yield iniquitous consequences. In the right of the above discussion, we are, therefore, inclined to exercise our discretion in favour of granting specific performance of the contract for sale between the parties on the conditions that the Respondent-plaintiff pays the balance consideration price of Rs. 1,00,000/- to the appellant-Defendant. It is accordingly ordered that the Respondent-plaintiff would pay to the appellant-Defendant the balance amount of Rs. 1,00,000/- within a period of six weeks herefrom and if the same is done, the appellant-Defendant would complete all legal formalities with regard to the execution registration of the sale deed forthwith and deliver possession of the suit property immediately thereafter to the Respondent plaintiff The parties would fix a date on which the Respondent-plaintiff would pay the balance consideration price of Rs. 1,00,000/- and the appellant-Defendant would gel the sale deed registered and hand over possession of the suit property to the Respondent-plaintiff. 17. The appeal is thus allowed to the extent indicated hereinabove. The judgment and decree of the learned trial Court are accordingly modified to the said extent. There would be not order as to costs. 1,00,000/- and the appellant-Defendant would gel the sale deed registered and hand over possession of the suit property to the Respondent-plaintiff. 17. The appeal is thus allowed to the extent indicated hereinabove. The judgment and decree of the learned trial Court are accordingly modified to the said extent. There would be not order as to costs. Appeal allowed.